Mr. Fredrick Obeahon Ogbeifun -VS- Uda Micro Finance Bank Ltd

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDEN AT AKURE

BEFORE HIS LORDSHIP: HON. JUSTICE A. A.ADEWEMIMO

DATED: 11^THFEBRUARY, 2019 SUIT NO: NICN/BEN/07/2017

BETWEEN

FREDERICK OBEAHON OGBEIFUN CLAIMANT

AND

UDA MICROFINANCE BANK LIMITED DEFENDANT

REPRESENTATION:-

Y. MUSA HOLDING BRIEF FOR PROF. O. O. EKPU FOR THE CLAIMANT.

T. ACHI FOR THE DEFENDANT.

JUDGMENT

The Claimant by a Complaint commenced this suit on the 31^st March, 2017 and later amended his claims against the Defendants as follows:

a)A Declaration that the purported dismissal of the Claimant being subsequent to the Claimant’s resignation is unconstitutional, null and void.

b)An Order directing the Defendant to tender an unreserved apology to the Claimant for the purported dismissal which is fictitious, false and mendacious.

c)The sum of N10 million being general damages for injuries suffered as a result of the purported dismissal.

d)An Order directing the Defendant to pay to the Claimant his gratuity of N750, 000.00k being 50% of his annual emolument for premature retirement as contained in the bank staff manual at page 3.

e)An Order directing the Defendant to pay to the Claimant his end of year allowance for year 2008 amounting to N240,000.00k that is, three times his basic salary, as paid to other members of staff for that year.

f)The sum of N181,680.00k being his net salaries for the period of December 2008 to January 15, 2009 after the deductions for tax and contributory benefit scheme.

g)The sum of N71,250.00k being his withheld allowances as Acting Managing Director plus the sum of N1, 465.87k being interest charged the Claimant on the deducted allowances initially paid.

The Claimant filed along with the Complaint all the accompanying processes, he later amended and filed same on 8^th March, 2018 (i.e. the amended statement of facts, additional statement on oath of the claimant, additional list of documents to be relied upon. The Defendant on its part filed a memorandum of appearance, Statement of Defence and other accompanying processes on 18^th April, 2017. The Defendant also filed a consequential Amended Statement of Defence and an additional Witness Statement on Oath of Mr. Martin Ajomo on 5^th March, 2018.

The Claimant’s case is that he joined the services of the Defendant in September 1992 as an Assistant Market Analyst and Appraisal Officer. He was promoted to the position of an Accountant in April 1993 and then as a Manager in September 1999 and later appointed as Ag. Managing Director in August 2007. He averred that the Defendant through the Chairman of the Board of Directors announced in a notice to all staff on 12/12/2008, some changes in its management structure, by which he was demoted and reassigned as Manager, Special Duty. Dissatisfied with this development, he tendered his letter of resignation as an employee of the defendant on 15/12/2008 giving 30 days’ notice as required by the terms of his employment. He worked for the Defendant up to 15/1/2009 when his resignation became effective. It is his averment that when he was the Manager and Ag. Managing Director/ Chief Executive of the Defendant, he had received commendations verbally and in writing for his dedication to duty and honesty, he was also a member of the Defendant’s Board of Directors by virtue of his position as Acting Managing Director, he averred that while in office, the bank witnessed tremendous growth in size and profitability.

The claimant further averred that he worked for the Defendant up to 15/1/2009 when his resignation became effective, and he had no pending disciplinary case prior to this. He alleged that the defendant had since refused or failed to pay his entitlements. Consequent upon the above the claimant caused his solicitors, to write a letter of demand to the Defendant. He was later allegedly dismissed by the Defendant three months after he had ceased to be in the employment of the Defendant having resigned on 15//12/2008 vide Exhibit F5. The Claimant stressed that the defendant is not in position to accept or reject the resignation letter as the terms of appointment only stated that either party could terminate the appointment/employment upon the tendering of one month’s notice.

Whereof, the claimant claims against the defendant as aforestated.

On the Defendant’s part it is its case that the Claimant served as its Manager and Ag Managing Director and that levels of authority were shared amongst the Managing Director, the Vice Chairman and the Board. The Defendant averred that the claimant’s letter of resignation was never accepted as he was already facing disciplinary proceedings, and that the Staff Manual referred to by the Claimant in the Amended Statement of Facts on contributory pension does not apply to the Claimant and that he was not entitled to any sitting allowances or allowance for premature retirement. The Defendant claimed that since the claimant was an ex-officio member of the Board of Directors of the Defendant by virtue of his position as Ag Managing Director, he was been paid his salaries and allowances as such was not entitled to any sitting allowances for attending Board meetings which was part of his schedule of duties. The Defendant later discovered that the Claimant was illegitimately collecting sitting allowances for this, hence the said amount was deducted from his account.

The Defendant stated further that the Claimant was later reassigned as Manager (Special Duty) with a mandate to recover all outstanding loans/overdrafts which he granted in excess of his authority and without the approval of the Board of Directors.

It was pursuant to this issue of “unauthorised overdraft” and the failure of the Claimant to recover the outstanding loans/overdraft that he was later dismissed vide Exhibit F8.

Finally, the Defendants averred that the Claimant is not entitled to any of the claims as stated in paragraphs 27, 28 and 29 of the Amended Statement of Facts due to very poor performance arising from the several unauthorised credit facilities he single-handedly granted and which were not recovered and therefore urged the court to dismiss the Claimant’s suit with substantial costs.

The Defendant raised a preliminary objection before the commencement of trial in this case on the ground that this Court lacks jurisdiction to entertain this matter because it is statute barred, having been filed outside the limitation period as prescribed by Section 4(1) of the Limitation Law of Edo State. Argument on this issue was heard from both parties on the 7^th of November, 2017. The court in a well-considered ruling thereafter dismissed the objection on the 13^th of December, 2017, and affirmed that it possesses the requisite jurisdiction to entertain this matter.

Trial commenced in this suit on the 7^thMay, 2018 with the claimant testifying for himself as CW1, he adopted his witness statement on oath, and further witness Statement on oath. He tendered several documents which were admitted by the court and marked as Exhibits F1–F8, he was later cross examined by the Defence Counsel and afterwards closed his case.

On the 31^stof May, 2018 the Defendant opened its defence by calling a sole witness, one Martin Ajomo as DW1, he adopted his witness Statement on oath and additional witness statement on oath and tendered several documents which were admitted without objection by the Court and marked as Exhibits M1 – M7, the witness was cross examined, and the Defence thereafter also closed its case. The case was thereafter adjourned to 21^st November, 2018 for the adoption of final written addresses on the 4^th of October, 2018.

D.T Achi of counsel for the Defendant adopted the final written address dated 10^th September, 2018 on 21/11/2018. In the address, the defendant formulated three issues for determination to wit:

(1)Whether the Claimant who was facing a disciplinary process by the Defendant can pre-empt same through his purported notice of resignation of appointment?

(2)Whether the Defendant Bank did not act within its right when it dismissed the Claimant from its employment?

(3)Whether the Claimant is entitled to the reliefs claimed as per his Originating Processes before this Honourable Court?

On issues one and two, counsel submitted that the Defendant rightly and lawfully dismissed the Claimant from his employment because, as can be garnered from the oral and documentary evidence adduced, the Claimant not only committed an act of professional misconduct in his granting of unauthorized overdrafts, he admitted doing so. He referred the Court to Exhibits M1 and M2, which are the queries that catalogued the Claimant’s acts of indiscretion and impropriety in granting loans/overdrafts above his approval limits. These exhibits also show that the said overdrafts facilities were not secured with any collateral as required by standard banking practice. The defendant submitted further that Exhibit M3 catalogued the details of these fraudulent transactions and the colossal financial damage it caused to the Defendant. This document revealed that the Claimant plunged the Defendant into a financial loss of N30, 327,805.10k. The Defendant submitted that these documents were admitted without objection and therefore amounts to an admission of its content. He urged the Court to attach the deserved probative value to these documents. Learned counsel cited the case of Nyesom v. Peterside & Ors. [2016] All FWLR (Part 842) 1573 where the Supreme Court drew a distinction between the admissibility of document and probative value attached thereto. In this case, the Claimant did not object to the admissibility of the documents tendered and consequently this tends to prove his admission of the allegation against him. He therefore urged the court to hold and attach probative value to the Exhibit.

Defence counsel also submitted that in the face of the overwhelming evidence of the claimant’s misconduct as revealed in the exhibits tendered, he vide Exhibit M4 admitted his complicity and gave out an undertaken to recover these “bad debts” from the affected customers. This document which is hand written by the Claimant was tendered without objection by DW1, and he was not cross-examined on it, he therefore urged the court to attach the deserved probative value to this exhibit and hold that the Claimant was culpable for gross misconduct which entitles the Defendant to exercise its right to terminate his employment. He cited the following cases; Ihezukwu v. University of Jos [1990] LPELR-1461 (SC); (1990) 4 NWLR (Part 146) 598 (SC), Dudusola v. Nigeria Gas Company Limited [2014] All FWLR (Part 713) 1902(SC) where the Court held that in a master and servant relationship, the master has an unfettered right to terminate or even dismiss the servant. He submitted that it was this effort to discipline the Claimant for his wrong doing that led to the issuance of Exhibits M1 and M2 to him. Furthermore, counsel submitted that evidence on record reveals that the Claimant was demoted to the rank of a Manager (Special Duties) with a clear mandate to recover these “bad debts”. The Claimant admitted his wrong doing and authored Exhibit M4, promising to recover the loans but at the time of his dismissal he had not recovered same.

Counsel submitted that the dismissal of the Claimant by the Defendant was a natural consequence of his misconduct and the Defendant properly and validly exercised its right to summarily dismiss the Claimant from its service and in consonance with Paragraph 5.0 of Exhibit F3, specifically, Paragraph 5 (e) which provides that:

“The Bank may summarily dismiss, without entitlements to any staff member who:

(e) Commits any other offence, which the Board considers to be of grievous nature

Counsel submitted that from the Defendant’s case, it was made clear that the Claimant’s act of granting unauthorized loans to customers was a grave infraction of the Bank’s Rules and Regulations as detailed in paragraphs 10-13 of the extant statement of defence, DW1 in his evidence in chief reiterated these facts and more specifically under cross-examination. He confirmed this position further as follows:

“The Claimant was not paid the end of year bonus because of the debt he plunged the Bank into due to the unauthorized loans”

The Counsel asked if “it is feasible, proper and lawful for the Claimant who admitted committing gross misconduct and was already facing disciplinary process to tender a letter of resignation and just walk away?” He submitted that on the strength of the facts and law, the Claimant cannot do this. By Exhibits M1 and M2 a disciplinary process had already commenced against the Claimant, yet before the issues raised in these queries were resolved, he tendered Exhibit F5 which was rejected by the Defendant.

Learned counsel to the defendant also submitted that the Defendant was within his right to reject the purported resignation because it was done in bad faith and most importantly it is firmly settled that an employee facing disciplinary process can no longer resign from his employment. He cited MTATI V KPMG SERVICES (2017) JOL 37427 (LC), in resolving this issue, the Court drew a distinction between a resignation with immediate effect and one done with notice. The Court held that in spite of her resignation, her employer can continue with the disciplinary enquiry and if she is found culpable, dismiss her. Also in UNIVERSITY OF CALABAR TEACHING HOSPITAL V JULIET KOKO BASSEY (2008) LPELR-8553 (CA), the Court of Appeal, Calabar Division reiterated the point that a staff facing a disciplinary process cannot resign from his employment. Counsel submitted that this decision is applicable to the facts and circumstances of this case because the Claimant herein was already facing a disciplinary process vide Exhibits M1 and M2 and had been demoted to the position of a Manager (Special Duties) with a mandate to recover the unauthorized loans. This point was succinctly made by DW1 under cross-examination thus:

“There is nothing in the manual that authorized the Bank to reject the letter of resignation; however, a letter of resignation can be rejected if a staff has disciplinary issues with the Bank”

Counsel submitted that this piece of evidence sealed the Claimant’s fate because he could not establish that his resignation was valid and effective. Counsel submitted that the acceptance of the letter of resignation by the Defendant is a material pre-condition to the effectiveness of the resignation because at the time the resignation was purportedly made by the Claimant, he was already undergoing a disciplinary process (alluding to the dictum of the Court of Appeal in the University of Calabar Teaching Hospital’s case. He argued that unless and until he recovered the monies as promised, he could not “run away” from his misconduct or malfeasance or contractual obligation by recourse to his right to terminate the contract of employment. He therefore urged the court to resolve these issues in favour of the Defendant.

On issue three, Defence Counsel admitted that from the oral and documentary evidence on record, the Claimant is not entitled to the reliefs sought. He submitted that the Claimant has failed to prove his claims before this Court and therefore he is not entitled to the reliefs. This is because the evidence he adduced in support of these claims and reliefs fall short of the standard of proof required by law as there is nothing in the Claimant’s pleadings and evidence to show what manner of injuries he suffered and how it flowed from his alleged wrongful dismissal, to warrant his claim for the sum of N10 Million as general damages. He urged the Court to discountenance this claim as unproven.

On the relief sought for the payment of N750, 000.00k being 50% of his annual emoluments as contained in Exhibit F3. He stated that the claimant has failed/neglected to lead credible evidence in proof of this claim. He argued that the Claimant who was summarily dismissed from the services of the Defendant is not entitled to any pension benefit or gratuity. He referred the Court to paragraph 2.6 of Exhibit F3 which provides as follows:

“Any member of staff dismissed from the Bank’s services shall lose all his/her benefits with the Bank including accrued annual leave. He would however be entitled to his earned salary unless he is indebted to the Bank in which case he/she is surcharged”

Furthermore, paragraph 5.1 of the said manual also provides that

“The Bank may summarily dismiss without entitlements to any staff member who….”

Counsel further submitted that the Claimant is not entitled to the payment of the sum of N240,000.00 as end of year allowance for the year 2008 because it was only given to members of staff who had earned profit for the Bank in the year in question. DW1 in his testimony reiterated this point under cross-examination when he stated as follows:

“It is not correct that every staff of the Bank was paid bonus on profit made by the Bank, it depends on the output/productiveness of the staff….The Claimant was not paid the end of year because of the debt he plunged the Bank into”

In the sixth relief, the Claimant is asking for the payment of the sum of N181,680.00 being his net salaries for the period of December 2008 – 15^th January, 2009. Counsel noted that the evidence revealed that the Claimant did not work for the period and he is therefore not entitled to any emolument. DW1 emphasized this point in his evidence under cross-examination when he stated;

“The Claimant was not paid salaries from December 2008-January 15th 2009 because he did not come to work for this period”

In response to the Claimant’s seventh relief, which seeks the payment of the sum of N71, 250.00k being his withheld allowances as Ag. Managing Director plus the sum of N1,465.87k being interest charged on the deducted allowances initially paid, defendant asserted that it was revealed in the Claimant’s pleadings and evidence that the Claimant who was an ex-officio member of the Board of the Defendant was not entitled to any sitting allowance. Counsel submitted that due to his vantage position as Managing Director, the Claimant unilaterally and wrongfully paid himself and when the Defendant discovered this anomaly, it reversed the payment. Counsel therefore urged the court to dismiss the claimant’s claims in its entirety.

O.C Onehidebro of counsel for the claimant adopted his final written address dated and filed on 23^rdOctober, 2018, wherein he formulated two issues for determination to wit:

(1)Whether having regard to the terms of contract of employment with the Defendant, the Claimant’s letter of resignation dated 15/12/2008 validly terminated his employment and whether the Defendant is entitled to accept or reject the Claimant’s resignation letter.

(2)Whether the Claimant is entitled to the reliefs claimed.

On issue one, counsel submitted that the relationship between the Claimant and Defendant is one of employment governed by the principles of contract and the law is settled that where parties freely enter into a contract, the contract becomes binding on the parties and the attitude of court is that where the contract is clear and unequivocal, then the court in construing the relationship between the parties, confines itself to the contract. He cited Nigerian Gas Company Ltd v. Unuavwodo (2003) FWLR (Pt169) 1196 at 1205 paras. B-C; Fakuade v. ObafemiAwolowo University Teaching Hospital Complex Mgt. Board (1993) 6 SCNJ 35 and Amodu v. Aode (1990) 9 – 10 SC61 and others.

Learned counsel argued that in the instant case, the contract of employment between the parties at all material time is Exhibit “F1”. He therefore relied and led evidence on same. Exhibit “F1” provides that either party can determine the contract by giving 30 days’ notice or one month salary in lieu of notice. He submitted that the court must look at Exhibit “F1” in order to determine whether the Claimant can be said to have validly resigned his employment with the Defendant and whether the Defendant was entitled to exercise any discretion to accept or reject the resignation letter.

On the contention by the Defendant that it did not accept Claimant’s letter of resignation, he submitted that it does not lie with the Defendant whether to accept or reject Claimant’s letter of resignation, particularly as the Claimant did not contract out his right to resign and that his resignation took effect from the date the notice of resignation was received. He argued that there is absolute power to resign and no discretion to refuse to accept the notice of resignation. He cited the cases of Adefemi v.Abegunde [2004] All FWLR (Pt. 203) 2109 at 2129 – 2130; T.O.S. Benson v. Onitiri (1960) 5 FSC 69; Yesufu v. Gov., Edo State (2001) 13 NWLR (Pt. 731) 517U.B.N. Plc v. Soares (2012) 11 NWLR (Pt. 1312) 550, at 578; Oyedele v. I.U.T.H (1990) 6 NWLR (Pt. 155) 194, at 199;WAEC v. Oshionebo (2006) 12 NWLR (Pt. 994) 258, at 272.

Learned counsel therefore submitted that the Defendant in this case has no power to reject the resignation of the Claimant for whatever reason once the resignation accorded with the terms of the contract between the parties. Counsel further submitted that any contrary conclusion would amount to subjecting the Claimant to forced labour in violation of his fundamental right guaranteed by section 34(1)(c) of the 1999 Constitution. He argued that where a contract contains provisions that either party thereto may determine it by specified notice or payment of prescribed sum of money in lieu thereof, such notice or payment as the case may be must be complied with in strict accordance with the terms of the contract. He submitted further that where however, the right to determine the contract by notice or the performance of a condition precedent is required, the party seeking to exercise that right must ensure that the prescribed condition precedent was fulfilled. He relied on the case of Ibama v. S.P.D.C. Ltd (2005) 132 LRCN 2585. In the instant case, the claimant submitted that there was no condition precedent to be performed by him before he could tender his resignation. His contract with the Defendant stipulated only the giving of notice by either party or payment in lieu to determine the relationship. The Claimant duly gave the prescribed notice to the Defendant and this ended the employment relationship.

Counsel posited that Exhibit M4 is not tantamount to admitting liability for any act of misconduct. He stressed that the Claimant by Exhibit M4 simply pledged to assist the Bank to recover the loans because of the interest he has in the Bank as a shareholder. Moreover, the Bank has its own method of recovering loans from customers. It has never been the duty of a Manager to single-handedly recover loans from customers. There are machineries put in place for that purpose. He submitted that the loans in question were duly authorised/secured and the Defendant received income paid by the customers. Counsel submitted that the contention that the claimant was undergoing disciplinary action is misconceived and is not borne out by the evidence before the court, he therefore urged the court to discountenance and dismiss this line of the Defendant’s argument.

On issue two, counsel submitted that the Claimant has proved his case based on the preponderance of evidence to warrant this Court to grant him the reliefs sought. In civil cases, the Claimant must prove his case on the balance of probabilities, sometimes styled preponderance of evidence and as such, the judge has to weigh the evidence of both parties on an imaginary scale to see which side the scale tilts. He relied on the cases of Bod1 v. Aygo (2003) FWLR (Pt156) 815 at 830 PARAS F-H. and Buba v. Bukar (2003) FWLR (Pt183) 38 at 71 B–F.

Counsel stated that from the totality of evidence, it is clear that the case of the Claimant is for unlawful dismissal, non-payment of salary, allowances/bonus, and defamation of character. He submitted that the Claimant successfully established his case and his evidence was uncontroverted, and where evidence is neither challenged nor controverted, the court is allowed to rely on it. He relied on the case of Musari v. Bisisiyu (2004) All FWLR (Pt735) 387 at 403 PARAS B-C.

The defendant’s reply address was filed on 21^st November, 2018 and adopted same date wherein Counsel reacted to issues raised by the claimant in his final written address.

In reaction to issue one where the claimant insisted that he had an absolute right under his contract of employment to resign from his employment and that this right cannot be fettered by the Defendant; neither can it be made subject to acceptance by the Defendant. He noted that the Claimant proceeded to cite copiously and relied on the following cases: Adefemi v Abegunde (2004) All FWLR 2109 at 2129;Yesufu v Gov of Edo State (2001) 13 NWLR (PT.731) 517; WAEC v Oshionebo (2006) 12 NWLR (PT.004) 258 at 272 amongst other cases. The defendant responded that these cases are distinguishable from the facts and circumstances of this suit at hand as these cases merely restate the right of an employee to resign from his employment, the mode of resigning from his employment by the employee and the effective date of such a notice of resignation. The Defendant submitted that none of these cases support the view or argument of the Claimant that an employee like himself who is facing a disciplinary process can pre-empt/truncate such a process by tendering his letter of resignation. Defendant submitted further that none of these cases expressly preclude an employer like the Defendant who has commenced such a disciplinary procedure against its staff and views an attempted resignation as a pre-emptory/escape route for the employee not to ignore such a letter and go ahead with its disciplinary process. Defendant submitted that the landmark decision by the Court of Appeal in University of Calabar Teaching Hospital v Juliet Koko Bassey (supra) remains the extant law and it has not been set aside or over ruled by any decision of the apex court. The defendant submitted further that none of these cases cited and relied upon by the Claimant addressed nor resolved this live issue that was resolved in that case.

The defendant submitted that the submission by the Claimant’s counsel amounts to a prevarication as it amounts to a concession that an employee undergoing a disciplinary process cannot suddenly resign his employment, likewise, his argument that the disciplinary process against him was concluded vide Exhibit F4 is in itself an admission that he did something wrong and therefore was liable to punishment. However, the futility of his argument is that by virtue of Paragraph 5.0 of Exhibit F3, the Defendant had the right to dismiss him without entitlements for his misconduct which was considered to be of a grievous nature. Defendant submitted that the Claimant had impliedly admitted his wrongdoing and cannot prescribe or insist on the limit of the punishment his employer can impose on him. This is in the light of the evidence of DW1 that Exhibit F4 was not the final punishment against the Claimant but that he was re-assigned to the position of a Manager (Special Duties) for the sole purpose of ensuring the recovery of the debts arising from the unauthorized loans.

The defendant while responding to issue two submitted that there is nowhere in the Statement of Facts where it was pleaded that the procedure adopted by the Defendant in the dismissal breached the contract of employment. Similarly, he argued that no direct evidence was led in support of this material fact, arguing that the Claimant is attempting to substitute his address for evidence on record as there is nowhere in the Claimant’s pleadings that he pleaded this material fact. He then wondered how the Claimant arrived at his conjecture that his dismissal was wrongful. Defence counsel therefore urged the court to dismiss his claim for wrongful dismissal He cited the cases of Bukar Modu Aji v Chad Basin Development Authority &Anor (2015)16 NWLR (PT.1486)554 at 569 Paragraphs C-D ;Amodu v Amode & Anor (1990) 5 NWLR (PT.150) 356 at 370, Paragraphs E-G, Ibekwe v Imo State Education Management Board (2009) 5NWLR (PT.1134)234 at 252, Paragraphs B-D, Anaja v U.B.A PLC (2011) 15 NWLR (PT.1270) 377 at 396, Paragraphs C-D.

The defendant finally urged the court to dismiss the Claimant’s suit in its entirety with costs.

I have carefully gone through the processes filed in this suit and I have come up with the following issues which will best determine this suit to wit:

Whether or not the resignation letter of the Claimant effectively terminates his employment with the Defendant.
Whether or not the Claimant is entitled to the reliefs sought in this suit.

On issue one, it is the Claimant’s contention that having resigned his appointment on the 15^th of December 2008, the Defendant had no authority to dismiss him on the 11^th of March, 2009 since he had ceased to be in the employment of the Defendant.

The Defendant on the other hand contends that a disciplinary process had already commenced against the Claimant, yet before the issues raised in these queries were resolved, he tendered his resignation letter which was refused. The defendant also contended that the dismissal of the Claimant from the Defendant was a natural consequence of his misconduct and as a result, the Defendant properly and validly exercised its right to summarily dismiss him from its service.

The law is that the employer reserves the right to terminate the employment of an employee, and this can be for a good/bad reason or no reason at all. See the cases of Ajuzi v. FBN Plc [2016] LPELR-40459 (CA); Oniga v. Government of Cross River State & Anor [2016] LPELR-40112 (CA).

The question that needs to be answered here is, can an employee also have the same equal right to resign his employment whenever he feels the need to do so? In a paper delivered by my learned brother B. Kanyip J. titled “The Changing face of Nigerian Labour Law Jurisprudence and What Employers need to Know” presented at the Perchstone & Graeys Labour Law Emerging Trend Seminar on Labour Law and Emerging Trends, much light was shed on this issue, when he stated thus;

“…it should be noted that labor laws, when ambiguous, are designed to benefit the employee….in Ineh Monday Mgbeti v. Unity Bank Plc, a clause in the Employee Handbook, which provided, inter alia, that Management reserves the right to reject a notice of resignation or payment in lieu from an employee if it is seen as a strategy to cover up a fraud or misconduct to avoid disciplinary action (what I will call the Unity Bank Clause), was not only struck down but it was held to approximate to forced labour contrary to Section 34 (1) (c) of the 1999 Constitution and section 73 (1) of the Labour Act; as such the provision was illegal and unconstitutional. In arriving at this decision, the NIC placed reliance on the ILO Convention Concerning Forced or Compulsory Labour, 1930 (No.29) otherwise called the Forced Labour Convention. I have personally noticed the Unity Bank clause replicated in the conditions of service of especially Banks. With the decision in Ineh Monday Mgbeti v. Unity Bank Plc, therefore, the Unity Bank clause is not only illegal, it is unconstitutional; a clause employers must now delete from their conditions of service. The point from all of this is that the NIC has never shied away from striking out offending provisions in conditions of service and to interpret same against the interest of the framers.

I indicated that the NIC struck out a clause in the conditions of service which permitted an employer to reject a letter of resignation. This calls up the treatment of resignation by the NIC, which employers must take note of. The law is that a notice of resignation of an appointment becomes effective and valid the moment it is received by the person or authority to whom it is addressed. This is because there is absolute power to resign and no discretion to refuse to accept; (underline mine) and it is not necessary for the person to whom the notice of resignation is addressed to reply that the resignation is accepted. Resignation with immediate effect by an employee carries with [it] three legal effects: the right to leave service automatically; the employee’s forfeiture of any benefit; and the employee paying any indebtedness to his employer.

He went further to state;

The justification for having to allow the resigning employee to leave immediately and automatically is the fact that [he/she] thereby forfeits [any] benefit he/she may be entitled to as well as the duty to pay off all indebtedness that [he/she] may [have] towards the employer; as such, the forfeiture of benefits inures as contractual consideration for the immediate and automatic separation of contractual relationship as per the employment in issue. So it cannot be that an employee who resigns with immediate effect is allowed to also benefit from such immediate separation by claiming benefits from the employer.”

Authorities on the rights of an Employer and an Employee abound on this issue, see SELCON TANNERY LTD V. MR BADA ABUBAKAR & ORS 2013 LPELR 21412, where Mbaba JCA stated;

“By law if a company or employer has reason(s) to relieve its servant of his appointment, the law allows it the right to do so, as the same is ingrained in every employment- that the employers has the power to hire and to fire (the same with the employee to walk out of the employment) provided the party exercising the power respects the agreement on the parting benefits”

Also in 7UP BOTTLING CO LTD V. ANYANYA AFAM AUGUSTUS 2012 LPELR 20873 CA, per Abba Aji JCA as he then was held as follows;

“If a contract of employment gives either party to the contract the right to bring the employment to an end without notice the motive which impels either party to lawfully terminate the contract is irrelevant”

It is therefore very clear, based on the above, that parties to a contract of employment can determine the contract by either termination on the part of the employer and resignation on the part of the employee, subject to giving the required notice as provided for in the documents governing the contract of employment. The Defendant in its final address relied heavily on the case of UNIVERSITY OF CALABAR TEACHING HOSPITAL V. JULIET KOKO BASSEY, 2008 LPELR 8553 CA, and MTATI v. KPMG SERVICES(PTY) LTD (J2277/16)[2016] ZALCJHB 403, delivered on the 18^th of October, 2016, the latter case is a South African case which is actually against the position of the Defendant, as it was held in that case that the resignation of the applicant changed the status of the employee from that of being an employee, in the ordinary sense of the word, to that of being the erstwhile employee of the respondent and as such the respondent had no jurisdiction to discipline the Applicant following her second letter of resignation.. The current trend in Labour law as highlighted in the reasoning and authorities cited above is that a letter of resignation determines the employment relationship, and a rejection of a letter of resignation by an employer for whatever reason, amounts to unfair labour practise and is therefore unconstitutional. In WAEC v. OSHIONEBO [2006] 12 NWLR (Pt.994) 258 CA, SELCON TANNERY LTD V. MR BADA ABUBAKAR & ORS supra; 7UP BOTTLING CO LTD V. ANYANYA AFAM AUGUSTUS; it was held that a notice of resignation is effective from the date such a letter was received by the employer, and it also bestows on the employee the right to leave the employment automatically without any benefit, subject to the employee paying any of his indebtedness to his employer.

In addition there is nothing in the contract of employment i.e Exhibit F3 that gives the Defendant the right to reject the Notice of resignation of an employee after the requisite one (1) month notice, the clause that came close to this is paragraph 2.4 of Exhibit F3, which provides for the rejection of the notice of resignation of a staff upon failure to give a one (1) month notice, this is not however applicable to this case as the claimant gave the requisite period of notice, even assuming there is such a clause, it is liable to be struck out as unconstitutional premised on the above.

Therefore, on the first issue formulated by me, I find that the Claimant had effectively resigned from the employment of the Defendant vide his letter dated 15^th December, 2008 i.e. Exhibit F5 with effect from 15^th January, 2009, in other words there was a cessation of his employment with the Defendant from the 15^th of January, 2009. I also find that the rejection of Exhibit F5 and belated dismissal of the Claimant by the Defendant vide Exhibit F8 is not only contrary to the terms and conditions of the employment i.e. Exhibit F3 but also constitutes a breach of the claimant’s fundamental right as guaranteed under the CFRN 1999 (as amended) and is thereby unconstitutional, wrongful, unfounded in law, null, void and of no effect whatsoever.

On issue two, whether or not the Claimant is entitled to the reliefs claimed, the 1^st relief sought a declaration that the purported dismissal of the Claimant being subsequent to the Claimant’s resignation is unconstitutional, null and void. Having held that the rejection of the claimant’s letter of resignation is unconstitutional, I resolve this issue in favour of the Claimant.

On the 2^nd relief, an order directing the Defendant to tender an unreserved apology to the Claimant for the purported dismissal which is fictitious, false and mendacious. This relief is in the realm of the law of tort which is not within the jurisdiction covered by this Court as provided for by Section 254C of the 1999 CFRN as amended, this claim therefore fails.

The 3^rd relief is a claim for the sum of N10 million being general damages for injuries suffered as a result of the purported dismissal. The position of the law is that a claim for damages is not normally entertained in employment cases, and the only award the court can make to an employee are his accrued rights and salaries under the contract of employment, See Ezeudeka V. ANMMCO & Ors 2016 N.L.L.R Part 225, Pg 123 NIC @ 142. Moreover, the Claimant has not placed before this court any concrete evidence showing the injuries he suffered as a result of the dismissal. I find therefore that he is not entitled to this relief. I so hold.

On reliefs 4, the claimant sought an order directing the Defendant to pay to the Claimant his gratuity of N750, 000.00 being 50% of his annual emolument for premature retirement as contained in the bank staff manual at page 3. I find that this claim is untenable having held that the dismissal of the Claimant was wrongful and void ab initio and the resignation of the Claimant was valid. The relevant clause relied on by the claimant is 3.0 of Exhibit F3, which provides for retirement due to redundancy, this is not however relatable to the instant case from the evidence adduced. This relief therefore fails.

The 5^th relief is for an order directing the Defendant to pay to the Claimant his end of year allowance for year 2008 amounting to N240,000.00k, that is, three times his basic salary, as paid to other members of staff for that year. The claimant having opted to resign his appointment forfeited his right to this benefit when he failed to fully recover the bad debts of the defendants. The relief also fails.

The 6^th relief is for the sum of N181, 680.00k being his net salaries for the period of December 2008 to January 15, 2009 after the deductions for tax and contributory benefit scheme. The Claimant contends that he worked for this period while the defendant contends that he didn’t. The Defendant’s assertion is however not supported by its pleadings, and the evidence of DW1 elicited under cross examination is insufficient to debunk the evidence of the claimant that he worked for this period. The monthly salary due to the claimant was never rebutted or controverted by the Defendant. Having held that the resignation of the Claimant was valid, I find that he is entitled to the sum of N181, 680.00k for the period of December 2008 to January 15, 2009 after the deductions for tax and contributory benefit scheme. I so hold.

The claimant also sought payment of a sum of N71,250.00k representing his withheld allowances as Ag. Managing Director and charged interest of N1, 465.87k on the deducted allowances initially paid. This claim is in the realm of special damages which must be specifically proved, the Claimant has not placed any documentary evidence before this court to support his entitlement to this claim, consequently this claim fails.

It is in the light of all the above that I hold in all that the Claimant’s claims succeed in part and for the avoidance of doubt I declare and order as follows;

That the purported dismissal of the Claimant being subsequent to the Claimant’s resignation is unconstitutional, null and void.

A sum of One Hundred and Eighty One Thousand, Six Hundred and Eighty Naira (N181, 680.00k) being his net salaries for the period of December 2008 to January 15, 2009 after the deductions for tax and contributory benefit scheme is hereby awarded to the claimant to be paid by the Defendant.